Muslim personal law in India

Muslims in India are governed by The Muslim Personal Law (Shariat) Application Act, 1937.[1] This law deals with marriage, succession, inheritance and charities among Muslims. The Dissolution of Muslim Marriages Act, 1939 deals with the circumstances in which Muslim women can obtain divorce.[2] husbands and to provide for matters connected therewith.[3] These laws are not applicable in Goa state, where the Goa Civil Code is applicable for all persons irrespective of their religion. These laws are also not applicable to Muslims who have married under the Special Marriage Act, 1954.[4] While other religious communities in India have codified laws, Muslim personal law is not codified in India.

Contents

There is no proof for administration of Muslim personal law until 1206 in Indian peninsula, even though there were Muslim invasions during this period.[5] During the reign of Slave dynasty (1206-1290 A.D), Khalji dynasty (1290- 1321), the Tughlak dynasty (1321-1413), the Lodi dynasty (1451 - 1526) and the Sur dynasty (1539- 1555), the court of Shariat, assisted by the Mufti, dealt with the cases involving personal law among Muslims. During Sher Shah's regime, the powers of Shariat court were restricted and Muslim law was modified to suit the requirements of the times.[5] During the regime of Mughal kingsBabur and Humayun, the earlier laws were followed, and the ulemas (religious scholars) had considerable influence on legal decisions. During Akhbar's regime, Ulemas' powers were significantly reduced and shattered the dominance of the orthodox Sunni school. During Jehangir's regime, cutting of noses and ears and death penalty could not be inflicted without the permission of the Emperor. Aurangazeb ordered for the compilation of code of law.[5]

Under the East India company, Muslim Law was enforced except when Muslims left the disputes to be determined according to Hindu Saastras.[5] The Regulation 11 of .1772 by Sec. 27 enacted that

"in all suits regarding inheritance, succession, marriage and caste and other religious usages or institutions, the laws of the Quran with respect of Mohamedan and those of the Shastras with respect to Gentoos (Hindus) shall be invariably adhered to."

In 1822, the Privy Council recognized the right of Shia Muslims to their own law.

The Muslim Personal Law (Shariat) Application Act was passed on 7 October 1937 in British India to ensure that Indians following Islamic faith shall be ruled according to their cultural norms.[1] This Act gave strength to the pre-existing customary laws, although it was in conflict with Islamic jurisprudence in several aspects.[5] This Act is still being followed in India in matters related to marriage, divorce and succession among Muslims.[1][6] The Dissolution of Muslim Marriage Act was passed in 1939, in order to give Muslim women the right to seek divorce.

==
In India, Muslim marriage is a civil contract between a man and a woman. Dissolution of marriage can be done at the instance of the husband (talaq), wife (khula) or mutually (mubarat). Talaq allows Muslim men to legally divorce his wife by stating the word talaq (Arabic word for divorce) three times with 3 months period between all three, in oral. written and electronic form of talaq is not allowed in Islamic law.[7] Some Muslim groups recognize triple talaq (or talaq-i-biddat), stating three talaqs at once and proclaiming instant divorce as valid method of divorce.[8] On 22 August 2017, the Supreme Court of India deemed instant triple talaq unconstitutional.[9]

Other Muslim groups follow talaq-i-hasan, where the husband pronounces three talaqs on three separate instances, each one at least 1 lunar month apart. If the husband changes mind after the first or the second talaq, or cohabits with the wife, the divorce is revoked.[7] In Islam, only husband can pronounce the talaq on his wife, and not vice versa. However, he can delegate this power to his wife or a third person by agreement, called talaq-e-tafweez.[7] The Muslim man does not have to cite a reason for divorce.[10]

Section 5 of Shariat Act of 1937 concerns with Muslim women seeking dissolution of her marriage. Section 5 was subsequently deleted and replaced by Dissolution of Muslim Marriages Act 1939. Muslim women can seek divorce at the court of law. A woman can ask for divorce in the following circumstances:

if whereabouts of the husband has not been known for a period of four years

if the husband has neglected or failed to provide for her maintenance for a period of two years

if the husband has been sentenced to imprisonment for a period of seven years or upwards

if the husband has failed to perform his marital obligations for a period of three years

if the husband was impotent at the time of marriage and continues to do so

if the husband has been insane for a period of two years or is suffering from leprosy or virulent venereal disease

if the husband treats the wife with cruelty, even if such conduct does not amount to physical violence

if the wife has been given in marriage by her father or guardian before she attained 15 years of age

if the husband associates with women of evil repute or leads an infamous life or attempts to force her to lead an immoral life

if the husband disposes of her property or prevents her exercising her legal rights over it

if the husband obstructs her in the observance of her religious profession or practice

if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran; or

carries out any other ground recognised as valid for the dissolution of marriages under Muslim law.[11]

A son gets double the share of the daughter wherever they inherit together.[12]

The wife gets one-eighth of the share if there are children and one-fourth of the share if there are no children. In case the husband has more than one wife, the one-eighth share will be divided equally among all wives. The husband gets one fourth of the share of his dead wife's property,If there are children and one-half if there are no children [13].

If the parent has more than one daughter, only two-third of the property shall be divided equally among daughters. If the parent has only one daughter, half of the parent's property is inherited by her.

The mother gets one-sixth of her dead child's property if there are grandchildren, and one-third of the property if there are no grandchildren.

Parents, children, husband and wife must, in all cases, get shares, whatever may be the number or degree of the other heirs.

Slavery, homicide, difference of religion and difference of allegiance, exclude from inheritance.

Mahr is the total money or property that the husband is required to give the wife at the time of marriage (Nikah). There are two types of mahr, the prompt mahr which is given to the wife soon after the marriage, and the deferred mahr which is given to the wife when the marriage has ended, either due to the death of the husband or by divorce.[12]